Soucie v Soucie
| Jurisdiction | Scotland |
| Judgment Date | 16 November 1994 |
| Docket Number | No 17 |
| Date | 16 November 1994 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Johnston
Parent and child Children and young persons Conflict of laws International child abduction Wrongful removal of child Petition brought after one year from date of removal Whether child settled in new environment Whether petitioner acquiesced in wrongful retention of child Whether petition should be granted Child Abduction and Custody Act 1985 (cap 60), Sched 1, arts 12 and 131
The Child Abduction and Custody Act 1985 incorporates the Convention on the Civil Aspects of International Child Abduction and makes provision for remedies where a child is wrongfully removed or retained from the country where he or she was habitually resident before the removal. Article 13 enacts that the court of the requested state is not bound to order the return of the child if the person who opposes its return establishes that the person seeking return had consented to or subsequently acquiesced in the removal or retention. Article 12 enacts that where a petition has not been brought within one year of the retention, the court has a discretion not to order the return of the child, if it is demonstrated that the child is now settled in its new environment.
The parties lived together in Canada along with their child until July 1992. Under Canadian law they had joint custody of the child. In July 1992 the parties came to Scotland to visit the wife's parents. After two weeks, as had been arranged, the husband returned to Canada, the intention being that the wife and child should remain for a further week in Scotland. On 31 July the wife telephoned the husband saying that she did not intend to return with the child. From then until September 1992 the husband frequently wrote and telephoned the wife but eventually stopped because his letters were returned and the wife's parents, with whom she was living, changed their telephone number. The husband then sought advice and on 12 January 1993, commenced
proceedings in Canada seeking custody. After sundry procedure, on 23rd September 1993, the husband obtained interim custody. In October 1993 the husband learned about the Hague Convention but was not well served by his solicitor to the extent that he eventually sought and obtained sound advice from the Attorney General's office resulting in the present petition being served on the wife on 10th May 1994. The wife argued before the Lord Ordinary (Johnston) that there had been acquiescence on the part of the husband so that the court should exercise its discretion in favour of non-return. She also argued that the child had now settled in her new environment and ought not to be returned. The Lord Ordinary held that there had been no acquiescence and that even if there had been he would have exercised his discretion in favour of ordering the return of the child and that the wife had not demonstrated that the child was now settled in her new environment and that accordingly art 12 applied, making an order for the return of the child mandatory. The wife reclaimedHeld (aff judgment of Lord Johnston) (1) that acquiescence might be active or passive but a party could not be said to acquiesce unless he was aware, at least in general terms, of his rights against the other parent and might be inferred from unexplained inactivity; but (2) that, where apparent inactivity was explained and that explanation was accepted no such inference could necessarily be drawn and that as the Lord Ordinary had accepted the husband's explanation, he was entitled to hold that acquiescence was not the proper inference to be drawn; (3) that, on the question of settlement in a new environment, it was not just a question of a balancing exercise between the requirements of the convention on the one hand and the interests of the child on the other, but was one where it clearly had to be shown that settlement in a new environment was so well established that it overrided the otherwise clear duty of the court to order the return of the child; and (4) that as the child was only three years of age it was unlikely that she could properly be said to be established in a community involving such matters as school, people, friends, activities and opportunities, and as far as emotional security and stability was concerned the overwhelming security and stability provided for the child would be provided by the presence of her mother and it was clear that the wife would return with the child if such an order was made so that the wife had failed to demonstrate that such a settlement had been established; and reclaiming motion refused.
N (Minors) (Abduction) [1991] 1 FLR 413 (dicta of Bracewell, J at p 418) applied.
David Gordon Soucie petitioned the Court of Session under the Child Abduction and Custody Act 1985 seeking an order under art 12 of the convention on the civil aspects of international child abduction, produced in Sched 1 to the Act, for the return of his child Ashleigh to Canada, the child having been allegedly wrongfully removed from there by her mother, Mrs...
To continue reading
Request your trial
-
Reclaiming Motion In Petition Under The Child Abduction And Custody Act 1985 In The Case Of J.p. V. F.m.
...12, the respondent has demonstrated that [M] has established a settled life in Scotland, the question, as set out in Soucie v Soucie 1995 SC 134, is not just one of a balancing exercise between the requirements of the convention, on the one hand, and the interests of the child, on the other......
-
Cannon v Cannon
...of Session. In construing Article 12 of the Convention the court adopted and applied the test defined by Bracewell J in Re N. 3630. In Soucie v Soucie (1995) SLT 414 the court noted that the decision in Re N had been accepted and adopted in Perrin v. Perrin and applied to the facts of that ......
-
M and another (Children) (Abduction: Rights of Custody) Re
...Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, at 440, per Wilson J. 26 In Scotland, the Inner House, in Soucie v Soucie 1995 SC 134, cited Re N and assumed that a discretion would have arisen under article 18 had settlement been found. In Ireland, the Supreme Court, in P ......
-
T.l.m.p. V. A.p.
...9, 13-15 per Lord Justice-Clerk delivering the Opinion of the Court citing In re H (Abduction: Acquiescence) [1998] AC 72; Soucie v Soucie 1995 SC 134 at 137B-I per Lord Sutherland delivering the Opinion of the Court but cf. C v C 2003 SLT 793 at § 8; D v D 2002 SC 33 at §§ 8, 18 per Lord C......